Unions & Labor Law Reform Blog

Cooler Heads Prevail: 2d Circuit Reins in NLRB on Union Button Restrictions, Employee "Opprobrious Behavior"

Roger Kaplan and Tom Walsh — Tue, 15 May 2012 12:47:33 -0800

Buttoning Down the Corporate Image

Since 2004, the current incarnation of the International Workers of the World (the storied “Wobblies” of labor’s glory days) has run a high-profile organizing campaign at several Starbucks stores. The company has been resisting the union’s efforts to organize its baristas. Company policy encourages employees to wear multiple buttons promoting Starbucks’ products, however, the company banned employees from wearing union buttons. A ban on union insignia, in most instances, is a violation of the NLRA. Unfair labor practice charges were filed; the case was settled, and the company implemented a new policy, which permitted employees to wear one union button. The IWW filed new charges against the company. The Board found the one-button limitation also was a violation of the Act. The company sought review of the Board’s decision in the Second Circuit court of appeals.

The Court noted that under Board law, an employer may restrict employees’ right to wear union buttons where the company maintains a specific, uniformed-employee image. NLRB v. Starbucks Corp., Nos. 10-3511-ag, 10-3783-ag (2d Cir. May 10, 2012). Starbucks has established a public image of employees wearing product buttons. The broad rule asserted by the Board would give employees an unlimited right to wear union buttons – allowing them to become “personal message boards” that would “seriously erode” the message intended by the company. The Court held that permitting one union button was adequate to protect employees’ rights under the Act.

Exuberant Misconduct in Front of Customers Might Not Be Protected

The Court also reviewed the discharge of a pro-IWW employee who protested the company’s button policy. The employee was terminated following a heating exchange with a manager in front of customers. Among other things, the employee told the manager to “go f--- yourself.”

The Board ordered the employee’s reinstatement, following the rule of a 1978 case, Atlantic Steel Co. (245 NLRB 814). In that case, the Board said the protection of the Act could be forfeited if in the course of exercising otherwise protected conduct, the employee engaged in “opprobrious behavior.” Whether the employee lost his Section 7 protection depended on an analysis of:

(1) the place of the discussion;

(2) the subject matter of the discussion;

(3) the nature of the employee’s outburst; and

(4) whether the outburst, in any way, was provoked by an employer's unfair labor practice.

The Board held that the employee’s outburst here was “brief” and was related to union activity – thus his discharge was a violation of the Act.

The Second Circuit rejected the Board’s analysis. “We think the…Board improperly disregarded the entirely legitimate concern of an employer not to tolerate employee outbursts containing obscenities in the presence of customers.” The four-factor Atlantic Steel test did not contemplate obscenities in “public venues where customers are present,” and therefore, “is inapplicable to an employee's use of obscenities in the presence of an employer's customers.”

The Court remanded the case to the NLRB to determine the standard to apply regarding such conduct occurring in the presence of customers.

Employers should not change their policies or disciplinary practices in reliance on these cases – yet. The Second Circuit is one regional appeals court. Its rulings apply to the Board in this case only. The Board may or may not embrace the Court’s rationale in any other case.

Also, the button rule in this case would apply only to a small percentage of employers who have consistently maintained uniform policies. In most cases, even uniformed employees have the right to wear union insignia. Here, the case turned on the employer’s unusual practice of having employees wear multiple buttons for the purpose of sales promotion.

Implementation of NLRB Workers' Rights Posting Rule Delayed by Federal Appeals Court

Jon Spitz — Tue, 17 Apr 2012 10:57:03 -0800

The National Labor Relations Board’s rule that requires all employers covered by the National Labor Relations Act to post a notice informing workers of their rights under the Act will not go into effect on April 30th after all. An emergency injunction was granted by the U.S. Court of Appeals for the District of Columbia Circuit in National Association of Manufacturers v. NLRB, No. 12-5068, on April 17. The Court also ordered...

Read the rest of the article here.

Arbitration Waivers Interfere with Employee Rights, NLRB Rules

Harold R. Weinrich and Roger Kaplan — Fri, 13 Jan 2012 07:01:03 -0800

Requiring individual employees as a condition of employment to sign arbitration agreements waiving their right to bring joint, class or collective actions, both in arbitration and in the courts, violates federal labor law, the National Labor Relations Board has held. The National Labor Relations Act, the Board said, confers on employees the right to pursue discrimination, wage and hour and other workplace-related claims in a joint, class or collective fashion as “protected concerted activity.” In D.R. Horton, 357 NLRB No. 184 (Jan. 3, 2012), the Board held that “employers may not compel employees to waive their NLRA right collectively to pursue litigation of employment claims in all forums, arbitral and judicial.” As the agreement in the case before it did just that, the agency found the agreement violated the statute, and ordered it rescinded or revised. The Board also concluded that the agreement violated the NLRA for the added reason that its language, which barred employees from starting “lawsuits or other civil proceedings” relating to their employment, would lead employees reasonably to believe that they were prohibited from filing unfair labor practice charges with the Board.

By no means, the Board asserted, does the decision ban all arbitration agreements with new and existing employees. “Employers remain free to insist that arbitral proceedings be conducted on an individual basis,” the NLRB affirmed. “So long as the employer leaves open a judicial forum for class and collective claims,” it continued, “employees’ NLRA rights are preserved without requiring the availability of classwide arbitration.”

The Board also recognized that a union representing employees in collective bargaining could waive individual unit employees’ rights to pursue statutory claims in court, as the Supreme Court held in 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009), maintaining that collective bargaining itself is a form of statutorily protected activity. But these waivers, it said, were different from the unilaterally imposed employment policies before it in D.R. Horton.

The panel deciding D.R. Horton included Member Craig Becker on his last day on the Board, but not Member Brian Hayes, who was recused.

A court challenge to the Board’s decision is anticipated. The case may even reach the Supreme Court. For more details on the decision, please see our article, Mandatory “No-Class Action” Arbitration Waivers Interfere with Employee Rights, NLRB Rules.

Controversial NLRB Appointments Announced

Michael Lotito and Roger Kaplan — Thu, 05 Jan 2012 10:35:37 -0800

The White House has added to the controversy surrounding the National Labor Relations Board and its recent actions by announcing the President intended to make three recess appointments to the agency. Despite the recent request of 47 Republican Senators to President Barack Obama to refrain from making recess appointments between the Sessions of Congress, it was announced that the President would do just that. On January 4, the White House Press Secretary said the President would nominate Sharon Block, Terence F. Flynn and Richard Griffin to fill the three empty seats on the NLRB. They would join Chairman Mark Gaston Pearce and Member Brian E. Hayes, giving Democrats a 3-2 majority on the Board. With the end of Member Craig Becker’s recess appointment on January 3, the Board now lacks a quorum to make decisions.

Ms. Block, a Democrat, is presently Deputy Assistant Secretary of Labor for Congressional and Inter-Governmental Affairs. Mr. Flynn, a Republican, has been serving as Chief Counsel to Member Hayes. Mr. Griffin, also a Democrat, is General Counsel for the International Union of Operating Engineers.

Legal challenges to the expected recess appointments reportedly are being considered by members of the Senate and others upset over the President’s action.

The recess appointees could serve until December 2014.

For more information on this development, see our article, NLRB Appointments Spur More Controversy as New Year Begins.

Labor Board's Quickie Election Rule Effective April 30, 2012; Implementation of Notice Posting Rule Postponed to April 30, 2012

Harold R. Weinrich and Roger Kaplan — Fri, 23 Dec 2011 11:34:00 -0800

As predicted, the National Labor Relations Board has published a final rule amending its union election process. The “quickie election” rule, which the Board rushed to finalize before the end of the year, will significantly change the process for contesting petitions for union elections and limit an employer's opportunities to challenge the process before an election is held. It also will limit an employer’s opportunity to communicate with its employees over issues of union representation before a vote is taken. The rule is scheduled to take effect on April 30, 2012.

For details of the rule, see our article, Quickie Election Rule Finalized Before Year End.

In addition, as we reported on December 20, Judge Amy Berman Jackson during oral argument in the challenge to the NLRB Notice Posting Rule pending in U.S. District Court for the District of Columbia said the case is a complicated one, and she asked the Board to postpone the effective date of the Rule beyond January 31, 2012, because she needs more time to deal with the issues. The Board in response to the Judge's request announced today that “it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012."

Judge Needs More Time, Suggests Postponing Implementation of NLRB Notice Posting Rule

Harold R. Weinrich and Roger Kaplan — Tue, 20 Dec 2011 08:37:09 -0800

Judge Amy Berman Jackson yesterday heard oral argument in the challenge to the NLRB Notice Posting Rule pending in U.S. District Court for the District of Columbia. The Rule requires employers to post a notice in the workplace that informs employees of their right to organize, provides contact information for the NLRB, and lists a litany of unlawful employer conduct. (More information about the Rule is available at the NLRB website.) While it is unwise to predict the outcome of litigation based upon a judge’s reaction and questioning during oral argument, one thing is clear: Judge Jackson believes the case is a complicated one. She asked the Board to postpone the effective date of the Rule beyond January 31, 2012, as currently scheduled, because she needs more time to deal with the issues.

Argument in a similar action pending in the U.S. District Court in South Carolina will not take place until January 11, 2012.

NLRB Acts on Quickie Election Proposal

Roger Kaplan — Wed, 30 Nov 2011 18:08:20 -0800

Philip Rosen (NYC), Michael Lotito (SF), Harold Weinrich (Washington DC), and Daniel Schudroff (NYC) wrote this post.

Earlier this afternoon, the National Labor Relations Board held a hearing on Chairman Mark Gaston Pearce’s Resolution pertaining to “Quickie Elections.” By a 2-1 margin, the Board voted to adopt the Resolution in its entirety. The Resolution eliminates some pre-election rights of employers in order to shorten the time before a representation election is held. Republican Member Brian Hayes was present and voted against the Resolution. Hayes also indicated he has no intention of resigning, putting to rest speculation about an issue that has been in the forefront of labor news lately.

Now that the vote is over, a final rule will be circulated among the three Board members and finalized before year end while the Board still has the Pearce-Becker majority. Based on comments made during the hearing, and in light of the substance of the Resolution, the time between the filing of representation petition and holding of an election will be reduced significantly. Our best current estimate is that the time will be reduced so that there may now be approximately 28-35 days between the filing of the election petition and the election. The timing of the election may increase, depending on the scheduling and duration of any pre-election hearing, the filing of briefs and the speed with which the Regional Director decides the case. There are also unknowns (depending both on the wording and administration of the final rule) that could reduce this timeframe even more. Also of note, one of the comments today indicated that the Board majority intends to consider the determination of an individual’s supervisory status to be a post-election matter, to be decided only if the issue is not moot after the election. This could be particularly problematic for employers.

Since employers will have significantly less time to provide employees with facts that would result in an informed choice in any NLRB election, it is more important than ever for companies to consider a comprehensive preventive labor relations program, including such elements as (1) lawful employer communications about the company’s position on unions, (2) supervisory training to insure compliance with the law in discussions with employees before and during organizing, (3) bargaining unit analyses (for example, to determine who is a supervisor), and (4) a legal analysis and development of best HR practices reflecting recent legal issues (such as the NLRB’s initiative relating to protected concerted activity). Please do not hesitate to contact the Jackson Lewis attorney with whom you normally work for legal advice regarding the Board’s rules and options for employer consideration.

NLRB Acting General Counsel Warns Companies about Social Media and Handbook Rules

Harold R. Weinrich — Fri, 11 Nov 2011 09:21:06 -0800

We have been conducting educational programs around the country for our clients and friends on the NLRB’s various agenda items. Among the topics covered was its Acting General Counsel’s focus on social media policies, as well as the Board’s assault on handbook policies generally by frequently implicating NLRA-protected concerted activity. As the Board’s chief prosecutor, the Acting GC can control the cases brought before the NLRB for decision.

Let’s be clear. This recent focus on social media and other handbook rules concerns not only unionized employees or those seeking to organize or join a union. It extends, as well, to the much larger private sector workforce that is not unionized. Of course, employers of these employees bear the brunt of the NLRB’s attention. The Acting GC and the Board are encouraging charges over these rules. They have developed and implemented effective public relations methods to inform employees that the NLRB protects their rights, even without a union, in many aspects of their employment, so long as the employees are acting together.

Here is some of what the Acting GC had to say at a November 3rd meeting of the American Bar Association:

A complaint he authorized in 2010 involving the use of social media, which was picked up by the news media, gave him “a chance to explain to the 93 percent [of private sector workers] who are not represented by unions the National Labor Relations Act” and principles of protected concerted activity under the Act.
As a result of the publicity, the agency received hundreds of unfair labor practice charges from individuals asserting that their employers violated their NLRA rights by punishing them for social media use. This shows that more workers are “waking up” to their NLRA rights.
“You can’t do that under the National Labor Relations Act,” he warns companies with what he sees as broadly worded policies that may be reasonably understood by employees to inhibit protected concerted activity.
Whether an employer’s disclaimer statement in a policy can avoid unfair labor practice liability likely will be reviewed as individual cases are brought to the NLRB. An effective disclaimer, he cautioned, cannot be “a throwaway line.” It must provide information about an employee’s rights.

Employers should review their policies to ensure they are in tune with the views of the Board and its Acting GC. Across the country, union-free companies have been charged with unlawful interference with employees’ concerted activity because of overly broad rules. In many of the election cases in which we have been retained as counsel, employers have prevailed at the polls only to be charged with objectionable conduct based upon handbook rules. All employers should conduct supervisory training to educate supervisors about protected concerted activity.

Breaking News: NLRB Posting Rule Postponed

Steven Porzio — Wed, 05 Oct 2011 11:16:54 -0800

The National Labor Relations Board has just announced it has postponed the effective date of its new rule mandating the workplace posting of an official Notice of Employee Rights under the National Labor Relations Act. The rule had been scheduled to go into effect on November 14th. Now, the rule will be effective on January 31, 2012.

The NLRB’s stated reason for the postponement is to “allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” The Board cited confusion over which business fall within the jurisdiction of the statute. Unlike many other employment laws, coverage does not depend on a minimum number of employees, but the extent to which a company engages in interstate commerce. The thresholds, generally expressed in terms of gross volume of business for different industries, are very low. Almost all private sector employers are subject to the Act.

The Board states that “[n]o other changes in the rule, or in the form or content of the notice, will be made."

Keep reading this blog for updates, or feel free to contact us for more details.

NLRB Announces New Standard for Bargaining Units in Non-Acute Healthcare Facilities; Allows Single-Classification Unit Consisting Only of CNAs

Roger Kaplan — Thu, 01 Sep 2011 11:30:36 -0800

On August 30 the National Labor Relations Board (NLRB) issued its long-awaited decision in Specialty Healthcare & Rehabilitation Center of Mobile, in which it announced a new standard for determining what constitutes an appropriate bargaining unit in non-acute health care facilities.

The union in Specialty Healthcare sought to represent a unit consisting only of Certified Nursing Assistants (CNAs) in a nursing home. The home argued that the unit should include other non-professional employees such as cooks, dietary aides, activity assistants, the social services assistant, staffing coordinator, maintenance assistant, the medical records and data entry clerks, central supply clerk, and the receptionist. In other words, the employer argued for the well-established facility-wide “service and maintenance unit” that has been the approved unit in nursing homes for more than 20 years.

Under the new standard, if the union seeks a unit of employees that is “readily identifiable as a group” (e.g., a unit of a single job classification) and those employees “share a community of interest,” the NLRB will approve the unit requested by the union unless the employer can show that employees in a larger unit “share an overwhelming community of interest” with the employees in the unit requested by the union.

The NLRB found that the unit of CNAs requested by the union in Specialty Healthcare was an appropriate unit and rejected the home’s request to add the other non-professional employees to the unit.

In his dissent, Board Member Hayes explains the NLRB’s decision and its impact in the context of the NLRB’s proposed changes to its election procedures:

First, in this case, they [the NLRB majority] define the test of an appropriate unit by looking only at whether a group of employees share a community of interest among themselves and make it virtually impossible for a party opposing this unit to prove that any excluded employees should be included. This will in most instances encourage union organizing in units as small as possible … . Next, by proposing to revise the rules governing the conduct of representation elections to expedite elections and limit evidentiary hearings and the right to Board review, the majority seeks to make it virtually impossible for an employer to oppose the organizing effort either by campaign persuasion or through Board litigation.

Non-acute healthcare providers can expect that unions will seek smaller units, likely to include units consisting of employees in a single-classification. This will make it easier for unions to win elections, allowing them to limit the requested unit to those employees with the strongest support for the union. This will lead to a proliferation of bargaining units in nursing homes, senior living facilities, and other non-acute healthcare providers and, as a consequence, multiple contracts and potential job actions by multiple groups of employees.

Non-acute healthcare providers should consult with their labor counsel to discuss this decision and strategies for minimizing its potentially damaging impact on their facilities and the care they provide.

New NLRB Posting Requirement Effective November 14

Roger Kaplan — Thu, 25 Aug 2011 08:35:15 -0800

The NLRB has advised the public that all employers covered by the National Labor Relations Act (generally all private sector employers) will be required to post a notification of employees’ rights by November 14, 2011. The Board’s August 25th press release, which contains links to the Final Rule and additional information, is reprinted below. The issuance of the Final Rule follows a notice and comment period in which employers generally called such a posting unnecessary and misleading.

The National Labor Relations Board has issued a Final Rule that will require employers to notify employees of their rights under the National Labor Relations Act as of November 14, 2011.

Private-sector employers (including labor organizations) whose workplaces fall under the National Labor Relations Act will be required to post the employee rights notice where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites. Copies of the notice will be available from the Agency’s regional offices, and it may also be downloaded from the NLRB website.

The notice, which is similar to one required by the U.S. Department of Labor for federal contractors, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

The Board received approximately 6,500 comments during the 60-day comment period following publication of the Proposed Rule in the Federal Register, and accepted an additional 500 that arrived after the deadline. In response to the comments, some parts of the rule were modified. For example, employers will not be required to distribute the notice via email, voice mail, text messaging or related electronic communications even if they customarily communicate with their employees in that manner, and they may post notices in black and white as well as in color. The final rule also clarifies requirements for posting in foreign languages. Similar postings of workplace rights are required under other federal workplace laws.

Board Chairman Wilma B. Liebman and Members Mark Gaston Pearce and Craig Becker approved the final rule, with Member Brian Hayes dissenting.

The rule will be published in the Federal Register tomorrow, and will take effect 75 days later. A fact sheet with further information about the rule is available here.

Memo Discusses Social Media Cases on NLRB Acting General Counsel's Agenda

Roger Kaplan — Thu, 25 Aug 2011 08:15:23 -0800

The NLRB Acting General Counsel Lafe E. Solomon has issued a Memorandum (OM 11-74) to Board regional officials, dated August 18, 2011, describing his Office's actions involving social media cases in the past year. Solomon explains: "Recent developments in the Office of the General Counsel have presented emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules. This report discusses these cases, as well as a recent case involving an employer’s policy restricting employee contacts with the media." The full report is available from the NLRB's website here.

Board social media cases generally involve claims of protected concerted activity by employees under Section 7 of the NLRA. Since these cases often turn on the unique facts presented to the Agency, consultation with labor counsel is recommended for employers facing NLRB charges involving employees' use of Facebook, Twitter and other such media. However, the Acting General Counsel's Memorandum offers useful insights into the Board prosecutor's approach to these kinds of cases in the circumstances described.

If you have any questions about the Memorandum or the NLRA, please contact Richard Greenberg.

NLRB General Counsel Remains Focused on Social Media

Roger Kaplan — Fri, 06 May 2011 12:42:17 -0800

The National Labor Relations Board’s prosecutor, its General Counsel, continues to show an avid interest in social media as a medium for complaints against employers. (The Board itself is an active participant in social media, with a Facebook page, a YouTube channel and a Twitter feed.)

On April 12, 2011, the NLRB General Counsel instructed the agency’s Regional Directors that prior to issuing administrative complaints, they should submit to his office’s Division on Advice all cases “involving employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter,” among other issues. (The General Counsel’s Memorandum is available at http://mynlrb.nlrb.gov/link/document.aspx/09031d458047021e.) The GC expects that this action will help him in the development of a consistent national policy.

The directive comes in the wake of some well-publicized agency complaints over asserted protected concerted activity on Facebook and Twitter. In October 2010, the GC filed a complaint accusing a company of firing an employee for criticizing her boss on Facebook. The case was settled and the company agreed to (1) revise its Internet policy to allow employees to discuss wages, hours and working conditions with co-workers outside of the workplace, and (2) refrain from disciplining or firing employees for engaging in those discussions.

More recently, the GC targeted another social media tool – Twitter. The GC reportedly had warned a company that it may have reprimanded an employee illegally over her criticism of company management in a Twitter post, in violation of the employee’s right to discuss working conditions with other employees. The matter was resolved when the union and company — which had been negotiating a new contract — reached a tentative contract, including negotiating a new social media policy that would include language that will protect employees’ speech and the right to engage in other concerted activity about working conditions.

The GC again focused on Facebook after issuing his directive. On April 27, 2011, the NLRB Regional Director in San Francisco reported the approval of a settlement after a company fired an employee allegedly for posting comments about the company and possible state labor code violations on Facebook. As part of the settlement, the company agreed to post a notice at the workplace for 60 days stating that employees have the right to comment about terms and conditions of employment on their social media pages and that they will not be terminated or otherwise punished for such right.

Employers should exercise care from a labor-relations perspective in handling social media issues and treat recent Board scrutiny in these cases as an invitation to revisit their own social media policies.

NLRB Actions to be Reviewed by Congressional Committee

Michael J. Lotito — Tue, 08 Feb 2011 14:40:28 -0800

The House Education and the Workforce committee is holding a hearing on February 11, 2011, to review the actions of the National Labor Relations Board. We expect they will talk about recent NLRB decisions and rulemaking efforts and the general direction of the Board.

In 2010, the Board's budget was $287 million, up $20 million from the prior year. Some cuts might be in the offing. In addition, there may be an effort made to defund certain activities contemplated by the Board. We will provide you with more information after the hearing concludes.

NLRB Acting General Counsel Focuses on Board Arbitration Deferral

Roger Kaplan — Wed, 26 Jan 2011 11:24:23 -0800

Under its current arbitration deferral policy, the National Labor Relations Board, to encourage collectively bargained dispute resolution, would defer a final determination in certain unfair labor practice (“ULP”) charges when the grievance can be processed through the parties’ grievance or arbitration provisions under their collective bargaining agreement (“CBA”). The Board’s Acting General Counsel has urged the Board to change its arbitration deferral policy, claiming it is “overly deferential” and not sufficient to protect employees’ organizing and collective bargaining rights under Section 7 of the National Labor Relations Act.

In his January 20th memo (GC 11-05), Acting General Counsel Lafe E. Solomon would require employers (as the presumed proponents of deferral to an award) to show the CBA had the Section 7 statutory rights incorporated in it or that the parties submitted the statutory issue to the arbitrator AND the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issues.

If the employer clears those hurdles, it will still have to show it is not “clearly repugnant” to the NLRA, i.e., the result is not palpably wrong or susceptible to an interpretation inconsistent with the Act.

Solomon’s new principle also would be implicated in NLRB approvals of pre-arbitration grievance settlements in certain ULP cases (the parties must have intended to settle the ULP charge as well as the contractual grievance). The NLRB regional offices are directed to investigate the ULP charge, at least to the extent of taking affidavits from the charging party (“CP”) and the CP’s witnesses, and to determine whether the charge has “arguable merit” before deferring to an arbitrator. When the award is issued, and a party urges deferral to it, the Regional Office is to examine whether the proponent has satisfied the three new criteria, make its determination, and submit the case to the agency’s Division of Advice.

Of course, if the arbitrator upholds the grievance, directs reinstatement and full back pay, and the CP requests withdrawal of the charge, the request can be approved. If the CP refuses to withdraw, the case still will go to the agency’s Division of Advice.

Now that the NLRB regional offices will dissect arbitration awards regularly, will the unions be filing ULP charges with every discharge grievance?

Would You Believe It's Always Sunny in Unionland?

Michael Lotito and Roger Kaplan — Mon, 24 Jan 2011 09:25:53 -0800

Additional contributors: Philip Rosen and Richard Greenberg, partners in our New York City office.

Wrestling with some dismal data on the waning strength of America’s organized labor, Secretary of Labor Hilda L. Solis tried to make the best of it. She said in her January 21st press release that the data showed the need for workers to unionize.

The Bureau of Labor Statistics reported on January 21 that the unionization rate of employed wage and salary workers dropped noticeably last year. For 2010, the agency announced, the rate nationwide fell to 11.9 percent overall, from 12.3 percent in 2009. In the private sector, the news was no better. The rate there dropped to 6.9 percent, from 7.2 the year before. There are 16.9 million workers in jobs covered by collective bargaining agreements, BLS reported, but 1.6 million of them indicated no union membership. Half of the 14.7 million union members lived in just six states: California, New York, Illinois, Pennsylvania, Ohio and New Jersey. The highest unionization rates were in education, training and library occupations. It is hard to imagine that half a century ago unions represented a third or more of America’s workforce.

But citing weekly wage differentials between union workers and non-union workers, the Administration’s chief (organized) labor advocate said that union jobs, with better benefits and pay, were central to restoring the middle class. Thus, the Secretary said, protecting the right to organize and bargain collectively was especially important to our economic recovery.

We wouldn’t count on a resurgence of union representation to fuel the engine of America’s recovery and job growth. If unions were so attractive, why are the BLS numbers so bleak? The recession took its toll on union jobs, as well as others. Unions could not prevent sizable layoffs in their members’ ranks and have not led the way back from high unemployment. They stand little chance of doing so, we think.

Despite the Secretary’s opinion, and the tinkering of a pro-union National Labor Relations Board trying to tilt the legal playing field in organized labor’s favor, America’s workers generally have shown little interest in casting their lot with the “fraternally yours” crowd. Perhaps a better educated, mobile, electronically oriented, and diverse workforce no longer sees as much value in traditional union representation — at least not enough to offset the cost in dollars and individual opportunity. And perhaps the Secretary’s generalizations on union workers’ compensation are too much influenced by the large contingent of public-sector union workers in the total mix and the shrinking clusters of union-dominated private-sector jobs. Employee free choice on union representation must be defended. Saddling America’s workers with unions they do not want to fulfill the Administration’s vision for economic reengineering, however, is ill-conceived.

Jobs with good wages and benefits are worth achieving. No one denies it. But unless these jobs are competitive, productive, and efficiently performed, and unless they reward individual achievement, they cannot last in today’s global economy. The President may have come to that realization as he seeks to reassure small business and corporate executives that he intends to rein in government regulation in order to create a climate conducive to growth and job creation. Unions have yet to show America’s workers they understand that need, too.

NLRB Threatens Litigation against States Requiring Secret Ballot Vote in Union Organizing

Michael Lotito and Roger Kaplan — Tue, 18 Jan 2011 11:46:32 -0800

The National Labor Relations Board’s union-boosting has taken a new and troubling turn…repudiating the will of voters who would make unions show by secret ballot that they really represent employees.

The NLRB has threatened four states, whose voters passed initiatives last year barring employers from recognizing unions except following a secret ballot election, with lawsuits claiming the state measure are preempted by the National Labor Relations Act. The Board’s Acting General Counsel, Lafe E. Solomon, on behalf of the agency, on January 13 notified the attorneys general of Arizona, South Carolina, South Dakota, and Utah that the measures would run afoul of the federal statute’s preemptive authority in the field of labor relations. Solomon opined, “By closing off an alternative route to union representation authorized and protected by the NLRA, [the amendments create] an actual conflict with private sector employees’ Section 7 [NLRA] right to representatives of their own choosing.” Expressing concern that employers, under pressure from state law, might refuse to recognize — or withdraw recognition from — unions “lacking an election victory,” or that represented employees might bring actions under the new requirements against such unions and their employers asserting violations of state constitutional rights, Solomon asked the attorneys general to consent to a judicially approved stipulation that the measures are unconstitutional. He has given the states two weeks to respond. After that, he said, he will file suit.

This latest step by the pro-union agency is both unsurprising and unsettling. The state ballot measures were intended to head off the “card-check” provisions of the Employee Free Choice Act (EFCA). Little wonder, then, that this Board, seemingly with the goal of achieving the unfulfilled “promise” of EFCA, should attack these initiatives head on. Unions would have to earn representation by secret ballot. Goodness! How could employees ever be expected to vote for a union after their employer weighed in on the issues?

So much for faith in democracy.

The Board views its mission as one to revive and expand unionism. From its members’ perspective (most of them, anyway) no straight-thinking employee ever could oppose unionization. And so, it proposes to sweep away “obstacles” to representation that most citizens agree are necessary to assure employee free choice.

The Board is mistaken. Its proper role is to act as a referee, not a booster — to allow employees to choose union representation, or not to choose it, as they see fit, under conditions that foster free expression of an informed choice. Allowing workers to cast a secret ballot in government-supervised election is the best way to do that.

Are we too harsh? Double standards aren’t pretty. When states limit union organizing the Board attacks them, but when a state restricts employers from communicating with employees about unions, the NLRB is missing, even though federal preemption concerns are at least as worrisome. Consider a 2009 Oregon law. It prohibits employers from taking action against employees who refuse to attend employer-called meetings on unionization or other issues, and even allows employees to get court injunctions against so-called “captive-audience” meetings. The law plainly addressed a subject covered by the federal law. The Chamber of Commerce and others brought suit challenging the law on grounds that it was preempted by the NLRA. But the NLRB was not among them. True, a federal judge turned back the challenge on grounds the suit was not yet ripe – no one had been forced to attend a meeting, he said. But Mr. Solomon doesn’t see that as a problem for the Board’s own planned lawsuits. “[W]here a danger exists that public knowledge of the provision may result in ‘self-censorship; a harm that can be realized without an actual prosecution,’” the Board can act, he says. So why didn’t the Board show up in Oregon? Because it wasn’t politically correct. This Board’s constituents saw it as “union busting” instead of “union boosting.” The Board has no qualms, however, over forcing states to spend sorely needed revenue on litigating secret ballot measures that vindicate employees’ rights. This is unsettling, indeed.

If there is any comfort to be gleaned from this, perhaps it is the knowledge that time is short. By the end of 2011, the Chairman’s term on the Board will have expired. So will that of one of her like-minded colleagues. EFCA legislation is foreclosed for now by a Republican-controlled House of Representatives.

The Board surely has one eye on the calendar. If it is to move its pro-labor agenda, it must act quickly. The threat to state attorneys general is not the last of these actions. Expect more. Very soon.

NLRB Proposed Workplace Notice Likely to Spark Uptick in Union Activity

Michael J. Lotito — Tue, 11 Jan 2011 08:09:36 -0800

*With contributions from Jackson Lewis attorney Jon Spitz.

Not satisfied, it seems, merely with issuing individual case decisions that favor organized labor, the National Labor Relations Board has proposed a rule that would require employers to notify employees of their rights under the National Labor Relations Act through a uniform workplace posting. The posting would be required for both unionized and non-unionized employers and would have to be posted physically and electronically, at least when electronic posting is a “customary means of communicating with employees.” Click here to view a copy of the proposed notice.

The rule could have a profound impact on union activism. The notice informs employees of their right to unionize, identifies unlawful conduct by employers, and even contains instructions for filing unfair labor practice charges in the event of alleged violations. Jackson Lewis will be commenting on (and opposing) the proposed rule on behalf of a number of entities and employers generally. Comments are due in mid-February. Implementation in some form, however, is a virtual certainty.

For a company's failure to post the notice, the proposed rule would extend or toll the six-month statute of limitations for filing an unfair labor practice charge against the employer. An employer's “knowing” failure to post the notice, moreover, could be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA. Finally, failure to post would be considered an independent unfair labor practice.

Employers should begin preparing for the implementation of the rule by considering the following actions:

Train managers and supervisors on their rights and responsibilities under the National Labor Relations Act.
Develop a communications strategy to explain to employees the disadvantages of union representation. Posting of the notice may spark interest in unionization. Employers should anticipate posting by putting the notice in context and explaining what a union really could mean for employees.
Audit employment practices, procedures and benefits and take remedial measures, if needed, to ensure that employees are not vulnerable to a union sales pitch.
Consider training an internal "SWAT Team" prepared to communicate with employees convincingly and lawfully in the event of union activity.
Conduct a bargaining unit analysis to ensure potential bargaining units are configured in the manner most advantageous to the employer and its operations.

Why Now, NLRB?

Michael J. Lotito — Tue, 28 Dec 2010 12:56:46 -0800

As most people prepare for the holidays, it seems the National Labor Relations Board is preparing for revolution.

Over the last few months, we have been treated to an amicus request from the Board in the Dana post-recognition decertification setting (see our article, NLRB to Reconsider Decertification Bar Rule).

Roundy’s also elicited an amicus request (see our article, NLRB to Decide On Union Access to Employer Property). The Board seems to think that when a retailer lets a charity ring bells outside the store, a union can ring the retailer’s bells by calling for a customer boycott. (We are preparing an amicus in that case for the Retail Litigation Center, RILA’s legal arm, which is to be filed by January 7, 2011.)

But over the last weeks, the Board has gone into overdrive. Its Acting General Counsel is no longer satisfied having employers simply post Board “remedial” notices as a means of resolving unfair labor practice cases. He wants to force employers’ high-level executives to read the agency-dictated notices to employees, as well, in their native languages if necessary. This sanction, moreover, would not simply be sought in connection with Board-ordered remedies for violations found after formal hearings. It would be required as a condition for pre-trial settlement of certain complaint cases against employers, too. There is more: in appropriate cases (which or how many is unclear), the agency’s chief prosecutor would have the Board direct the employer to allow a stranger union, access to its bulletin boards and even provide the union with the names and home addresses of its employees — supposedly because the employer has improperly interfered with the union’s ability to communicate with them under normal circumstances. Access by union agents to the employer’s (not so) private property also is envisioned.

Further, the Board has issued a proposed notice of rulemaking that applies even to employers who have not been accused of labor law violations. It would require hundreds of thousands of workplaces to add to their official government notices bulletin boards a union rights poster from the NLRB that might be called, “Let-Me-Tell-You-How-to-Sue-the-Company-For-Free.” With dubious statutory authority, the Board also would toll the law’s six-month statute of limitations on unfair labor practice charges if the notice is not posted. It seems to suggest also that it may grant an automatic summary judgment if the notice is not where it should be. Tie this invitation to employees to complain about their employers to the tough remedies the Board is conjuring and you can see where this is going.

That’s not all. On December 22nd, the Board requested yet more amicus briefs in a case involving bargaining unit determinations for long-term health care establishments.

Richard Trumka, my old classmate from Villanova Law School who now heads the AFL-CIO, must be happy this Christmas with all these gifts. Or perhaps he is saying: “Santa, you’re late!”

Why all of this activity now? Because no one is paying close attention? Congress is leaving town, the President is on his way to Hawaii, the press is following him and the members of the public – including business people – are occupied buying presents for families and friends and preparing festivities.

Because NLRB Member Craig Becker’s recess appointment is up in a year and Chairperson Wilma Liebman’s term expires next August?

Because unions are smarting over EFCA’s defeat and angry that they have gotten very little for their dollars in hard and soft campaign contributions, and political operatives in certain quarters are fearful that without a return on their investment, they may be less generous in the future?

Or is it because after a new Republican-controlled House of Representatives convenes in January, the Board expects oversight hearings far less congenial than it has been used to in the last several years? And might it expect trouble also with appropriations from the same body?

Or maybe the Board majority and the agency’s Acting General Counsel really believe they are doing the right thing, as the statute can only protect individual employee rights by promoting union rights?

Or is it for all of these reasons?

Just one thing is certain: EFCA was about “what if.” This Board is about “what now.”

We will be hosting labor programs at all of our offices in the first quarter of 2011 to discuss these developments. The PowerPoint presentation is getting longer by the day.

NLRB to Take Another Look at Bargaining Unit Decision-Making and Employers Won't Like It

Harold R. Weinrich and Roger Kaplan — Thu, 23 Dec 2010 08:52:52 -0800

The National Labor Relations Board’s activist majority has sprung yet another holiday season surprise. Employers probably won’t find in it a gift to their liking.

The Board announced on December 22nd that in order to come up with a standard for determining appropriate bargaining units in the long-term health care industry, and possibly others, it is inviting interested parties to file briefs on a series of issues it has framed to help it make a decision. The NLRB is taking up a decade-old case so it can revisit a two-decade-old case in which it said — no surprise, given its 75-year history of doing the same — that such determinations would be made by adjudication.

Its action comes in Specialty Healthcare & Rehab. Ctr., 356 NLRB No. 56. The case it wants to revisit is Park Manor Care Center, 305 NLRB 872 (1991). In Park Manor, the agency embraced a practical or empirical approach that could account for recurring factual settings as well as the Board’s traditional “community of interest” factors. Sounds reasonable. So why change? According to the Board majority, because the past 20 years have wrought major changes and brought burgeoning employment in the industry. Well, maybe, but we believe that what this NLRB really wants is to satisfy its labor union constituency. It will try to set in stone criteria that will all but assure successful union organizing in the industry. Look for rulemaking to achieve that end. Can rulemaking for bargaining units in other industries be far behind?

The sole Board member who doesn’t share the majority’s allegiance has seen the handwriting on the wall. Member Brian Hayes warns that his colleagues are “contemplating a broad revision of a test for determination of appropriate units in all industries under our jurisdiction — a test that has stood for at least 50 years.” He predicts the start of an “initiative [that] clearly represents broad scale rulemaking” and “will most certainly become a lightning rod for Congressional inquiry and protests from the labor-management community.”

With a Republican-controlled House of Representatives taking office in January, that inquiry may come sooner rather than later. The new House leadership should call upon the Board Chairman and its Members for an accounting. If broad-scale change was wanted, Congress would have made it happen. It didn’t. The proposed Employee Free Choice Act (EFCA) failed. The Board should not be able to circumvent that judgment.